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Gorham v. Barksdale

United States District Court, W.D. Virginia, Roanoke Division

September 23, 2016

HENRY GORHAM, JR., Plaintiff,
v.
EARL BARKSDALE, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon, United States District Judge

         Henry Gorham, a Virginia inmate proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants denied him access to the grievance procedure and failed to investigate his claims, used excessive force against him, and subjected him to cruel and unusual living conditions. Defendants filed a motion for summary judgment and Gorham responded, making this matter ripe for disposition. Having reviewed the record, the court concludes that defendants' motion for summary judgment must be granted in part and denied in part.

         I.

         Gorham alleges that on April 1, 2015, while he was making a cup of coffee at the sink in his cell, defendant Officer O'Quinn, without provocation or justification, reached through the cell door box of Gorham's cell and sprayed Oleoresin Capsicum (“OC”) spray[1] in Gorham's “eyes, mouth, face, and up and down [his] body, ” causing Gorham to choke, gag, and throw up, and making him temporarily “blind.” Gorham alleges that O'Quinn then “immediately slam[med] and lock[ed]” the cell door box and called for his supervisor, defendant Lieutenant Gilbert. O'Quinn told Lt. Gilbert that Gorham had been standing on his cell table with his lunch tray in his hand, attempting to break the sprinkler in his cell. Gorham states that he was taken to another cell which was already contaminated with OC spray from a previous occupant. Gorham alleges that Lt. Gilbert questioned Gorham about the incident and Gorham told Lt. Gilbert to go review the rapid eye security camera recording, that he was in pain and having a hard time breathing, that the cell he was placed in after the incident was already contaminated and had no running water, and that Gorham had not been decontaminated since the incident. Gorham states that Lt. Gilbert knowingly failed to have Gorham decontaminated “for hours, ” while Gorham suffered difficulty breathing and pain, including feeling as though his face was on fire for hours. Gorham alleges that Lt. Gilbert did not review the rapid eye security camera recording and did not investigate Gorham's allegations, and instead wrote a “false” disciplinary report in order to “cover up for his officer.”[2] Gorham alleges that defendants Operating Manager Shortridge and Warden Barksdale upheld the disciplinary charge without conducting an investigation. Gorham further alleges that defendant Grievance Coordinator Messer “continuously” denied Gorham the opportunity to exhaust the grievance process by not processing grievances, not responding to grievances, or providing “short, unexplained response[s].”

         In their motion for summary judgment, defendants allege that on April 1, 2015, at approximately 12:05 pm, O'Quinn was picking up lunch trays in the pod where Gorham was housed. O'Quinn states that, when he arrived at Gorham's cell, Gorham was cursing, standing on top of the table in his cell with his lunch tray in his hand, and threatening to break the sprinkler head. O'Quinn claims that he instructed Gorham to get down and step away from the sprinkler head, but Gorham swung the lunch tray in an effort to break the sprinkler head. O'Quinn alleges that he again instructed Gorham to get down and step away from the sprinkler head, but Gorham refused. O'Quinn then administered a one-half to one second burst of OC spray, striking Gorham “on the facial area.” O'Quinn states that he used the OC spray as a “last resort” after Gorham refused to comply with O'Quinn's instructions.

         Lt. Gilbert alleges that after the incident, he received a radio call that a supervisor was needed in the pod where Gorham was housed. Lt. Gilbert states that when he arrived, Gorham was cursing at O'Quinn and O'Quinn told Lt. Gilbert that he had used OC spray in Gorham's cell because Gorham was cursing, standing on top of the table in his cell, and threatening to break the sprinkler head. Lt. Gilbert told O'Quinn that he could leave the pod and asked another officer to retrieve a video camera. With the video camera recording, Lt. Gilbert told Gorham to present himself to be restrained, and Gorham complied without incident. Lt. Gilbert alleges that Gorham refused a shower for decontamination. Lt. Gilbert states that Gorham complained about difficulty breathing. A nurse assessed Gorham by checking his blood pressure and breathing and determined that both were normal. Gorham was moved to another cell without incident. Lt. Gilbert states that Gorham was not placed in a cell “that had no running water or that had previously been used that morning for a cell extraction . . . .” Defendants argue that Gorham's claims are barred from review because he failed to exhaust his administrative remedies before filing this action, Gorham's claims have no merit, and that defendants are entitled to qualified immunity as to Gorham's claims for damages.[3]

         II.

         Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In order to preclude summary judgment, the dispute about a material fact must be “‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993) (“The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.”); Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993) (finding that the district court properly did not consider inadmissible hearsay in an affidavit filed with motion for summary judgment).

         III.

         Defendants argue that Gorham failed to exhaust his administrative remedies before filing this action. The court finds a material dispute of fact as to whether administrative remedies were available to Gorham and, therefore, will deny summary judgment on this ground.

         The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 1997e(a). Administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust administrative remedies is an affirmative defense to be pleaded and proven by defendants. See Jones v. Bock, 549 U.S. at 215-216; Anderson v. XYZ Corr. Health Services, Inc., 407 F.3d 674, 682 (4th Cir. 2005).

         Ordinarily, an inmate must follow the required procedural steps in order to exhaust his administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008); see Langford v. Couch, 50 F.Supp.2d 544, 548 (E.D. Va. 1999) (“[T]he PLRA amendment made clear that exhaustion is now mandatory.”). But, the court is “obligated to ensure that any defects in administrative exhaustion were not procured from the action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). An inmate need only exhaust “available” remedies. § 1997e(a). An administrative remedy is not available “if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d at 725.

         Defendants argue that Gorham's claims are barred from review by the court because he did not exhaust administrative remedies before filing this action. Gorham alleges that defendant Messer “continuously” denied Gorham the opportunity to exhaust the grievance process by not processing grievances, not responding to grievances, or providing “short, unexplained response[s].” The court concludes that there is a material dispute of fact as to whether ...


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